The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR) have been at the vanguard of the extension of human rights for gay and lesbian people across Europe since the 1970s. They have pushed reluctant member states of the European Union and the Council of Europe towards the goal of equality.

Three new judgments, delivered this month, again attempt to address what can be deeply-rooted discrimination experienced by this sector of society.

In the ECHR judgment Valliantos and Others v Greece, the court found the exclusion of same-sex couples in Greece from registering a civil union, an option available to heterosexual unmarried couples, violated rights protected by article 14 in conjunction with article eight of the European Convention on Human Rights.

Separately, in EB and Others v Austria, the ECHR considered a refusal by Austria to delete the criminal records of four men found guilty of homosexual acts with consenting adolescents under 18 after the legislation on which the convictions were based was deemed unconstitutional. The court found the four men had been discriminated against.

Though neither of the ECHR judgments has a direct impact in Ireland, they contribute to a growing body of rulings in the area that helps to bolster moves towards equal access to fundamental human rights for all citizens.

Impact on Ireland
In terms of impact on Ireland, though, the CJEU judgment involving the asylum process is more important.

In X, Y and Z v Minister voor Immigratie en Asiel, the Netherlands asked the court to clarify existing EU law on asylum seekers. Three individuals from Sierra Leone, Uganda and Senegal had sought refugee status in the Netherlands. They claimed they were fearful of being persecuted in their home countries because they were homosexual. All three of the countries involved had made homosexual acts a criminal offence with punishments ranging from heavy fines to imprisonment.

The Netherlands court asked the CJEU if, under a European directive on qualification for asylum status, which draws on the UN's 1951 Convention Relating to the Status of Refugees, applicants who were homosexuals could be regarded as forming a "particular social group" as described under the directive and convention. It also asked how countries should assess what constitutes an act of persecution against homosexual activities, and whether criminalisation amounted to persecution.

Fundamental to identity
The court said a person's sexual orientation was a characteristic so fundamental to his identity that he should not be forced to renounce it. It also found that if criminal laws targeted homosexuals in a country it meant they formed a separate group in society perceived as being different in that country and could therefore be treated as "a particular social group".

But, the court said, to constitute persecution a violation of human rights must be “sufficiently serious” and not all violations of rights would reach that level of seriousness. The mere existence of criminalising legislation for homosexual acts was not enough; but a term of imprisonment or other punishments, provided that a country actually applied them, could constitute persecution.

The court said where an asylum seeker made an application on the basis of being at risk of persecution in his or her home country because of sexual orientation, the authorities in the country receiving the application must examine the laws and regulations of the applicant’s home country and how they were applied.

The court also ruled that an asylum seeker could not be expected to conceal his homosexuality in his country of origin to avoid persecution.

Ireland was one of the first countries in the world to specifically include persecution due to sexual orientation as grounds for asylum – in the 1996 Refugee Act – so the ruling in relation to social grouping should not alter the position here.

What is important, according to practitioners, is the element of the ruling that states a person cannot be required to hide their sexual orientation to avoid persecution in their home country.

Ann Campbell, project manager with the Irish Refugee Council, says the judgment is welcome for the clarity it brings to the law, in particular "the clear statement by the CJEU that it is unreasonable to expect an asylum seeker to hide or exercise restraint in expressing their sexual orientation in order to avoid persecution". But she has some misgivings about it. The mere existence of legislation criminalising homosexual acts does have far-reaching legal, social, and cultural implications, she says.

“Legislation can in fact, force individuals to hide their sexuality in order to avoid exclusion, alienation, widespread discrimination and violence amounting to persecution, regardless of whether criminal sanctions are “actually applied” as required by the court,” she says.

Barrister Siobhán Stack, who specialises in asylum cases, says the purpose of the court is to achieve clarity and uniformity throughout the member states. The judgment is totally consistent with international human rights she says and is welcome for the clarity it brings.

“It’s an important principle; administrations cannot say a person should go back to their own country and conceal their homosexuality,” she says. “This is an important recognition of gay rights.”

Fergus Ryan, law lecturer at the Dublin Institute of Technology, says the court’s decision was welcome, but was not entirely out of the blue. The point had been established in the British courts that gay and lesbian people should not be required to remain discreet to avoid persecution in their home country. And the Irish courts were already “leaning that way”.

In particular, Mr Justice Gerard Hogan, in SA (Algeria) v Minister for Justice, commented that a gay or lesbian person could not "be expected to sublimate or conceal their very identity in order to escape the wrath of a state or societal forces condoned by the state".

“What is key about the CJEU is that gay and lesbian people are perfectly entitled to be open about their lives and shouldn’t be forced to remain in the closet,” he says.

“This will not open the floodgates; people will still have to establish they are gay or lesbian and they are being persecuted – both can be difficult to establish.”